Free Motion for Extension of Time to File Response/Reply - District Court of California - California

Case 3:08-cv-01233-JM-NLS

Document 9

Filed 07/29/2008

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1 ROBERT E. BOONE III (California Bar No. 132780) 2 120 Broadway, Suite 300 3 Telephone: (310) 576-2100

BRYAN CAVE LLP

Santa Monica, CA 90401-2386 Facsimile: (310) 576-2200

4 Email: [email protected] 5

STACEY L. HERTER (California Bar No. 185366) 6 BRYAN CAVE LLP 1900 Main Street, Suite 700 7 Irvine, California 92614-7328 Telephone: (949) 223-7000 8 Facsimile: (949) 223-7100 Email: [email protected]
9 10 COUNTRYWIDE HOME LOANS, INC., individually 11 and dba AMERICA'S WHOLESALE LENDER; and

Attorneys for Defendant

RECONTRUST COMPANY

Bryan Cave LLP 1900 Main Street, Suite 700 Irvine, California 92614-7328

12 13 14 15 16 ROSARIO TINA, and JESUS G. TINA, 17 18 19 20 21 22 23 24 25 26 27 28
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Case No. 08 CV 1233 H AJB

EX PARTE APPLICATION OF DEFENDANTS FOR AN EXTENSION OF TIME TO vs. RESPOND TO COMPLAINT; SUPPORTING MEMORANDUM OF COUNTRYWIDE HOME LOANS, POINTS AND AUTHORITIES; AND INC.; AMERICA'S WHOLESALE LENDER; RECONTRUST COMPANY, DECLARATION OF STACEY L. HERTER Defendants. [FRCP 6(b) and Local Rule 12.1] Plaintiffs, [Filed concurrently with Memorandum of Points and Authorities, Declaration of Stacey L. Herter; and [Proposed] Order]

EX PARTE APPLICATION FOR EXTENSION TO RESPOND TO COMPLAINT

Case 3:08-cv-01233-JM-NLS

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1

Defendants COUNTRYWIDE HOME LOANS, INC., individually and dba

2 AMERICA'S WHOLESALE LENDER and RECONTRUST COMPANY 3 (collectively "Defendants") respectfully apply ex parte to the Court for an Order 4 extending the time within which Defendants may respond to the Complaint of 5 Plaintiffs ROSARIO TINA, and JESUS G. TINA ("Plaintiffs"). Defendants seek an 6 additional thirty (30) days, to and including August 29, 2008. 7

This ex parte application for an extension to respond to the Complaint is

8 necessary to allow Defendants sufficient time to investigate the claims asserted and 9 to prepare appropriate responsive pleadings. Plaintiffs filed their original complaint 10 (Case no. 08-CV-1167 JM (NLS)) on July 1, 2008; the Court dismissed the action 11 on July 2, 2008 for lack of subject matter jurisdiction. On July 10, 2008, Plaintiffs
Bryan Cave LLP 1900 Main Street, Suite 700 Irvine, California 92614-7328

12 re-filed their complaint (Case no. 08-CV-01233 H (AJB)). On July 14, 2008, the 13 court issued its "report of clerk and order of transfer pursuant to "low-number rule" 14 (attached), and the matter was transferred back to Judge Jeffrey T. Miller. Plaintiffs 15 filed their Summons/Return of Service filed on July 11, 2008, noting purported 16 service on Defendants July 10, 2008. (Docket No. 5.) Defendants only recently 17 retained counsel on July 28, 2008 and Defendants' responsive pleadings are 18 currently due to be filed on July 30, 2008. 19

Defendants require additional time because (i) counsel for Defendants need a

20 reasonable time to consult with their clients, review the relevant transaction files, 21 research legal issues relevant to the claims alleged, and prepare a written response to 22 the Complaint, all of which cannot be adequately done before the current deadline of
th 23 July 30 ; and (ii) despite attempts by Defendants to obtain an extension from

24 Plaintiffs, acting in pro per, Plaintiffs have failed to respond to those requests. 25

Because Defendants' response is due on July 30, 2008, there is not sufficient

26 time to timely serve a noticed motion for an extension of time to respond. This Ex 27 Parte Application is made pursuant to Federal Rule of Civil Procedure 6(b) and 28 United States District Court, Southern District of California, Local Rule 12.1, on the
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EX PARTE APPLICATION FOR EXTENSION TO RESPOND TO COMPLAINT

Case 3:08-cv-01233-JM-NLS

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1 grounds that good cause exists for the requested extension of time. 2

Counsel requires more than two days to properly investigate, research and

3 prepare a response to the Complaint. Defendants' request for an additional thirty 4 days to respond to the Complaint, to and including August 29, 2008, will not 5 prejudice Plaintiffs. Defendants certify that this is the first extension of time 6 requested. 7

Plaintiffs have been notified in writing of this Application in advance and

8 have been served with a copy of the ex parte papers via overnight delivery. (See 9 Declaration of Stacey L. Herter, ¶ 8, filed concurrently herewith.) 10

This Ex Parte Application is based on this Application, and the supporting

11 Memorandum of Points and Authorities, the Declaration of Stacey L. Herter, and on
Bryan Cave LLP 1900 Main Street, Suite 700 Irvine, California 92614-7328

12 all papers, pleadings and records on file in this action. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Dated: July 29, 2008

ROBERT E. BOONE III, ESQ. STACEY L. HERTER BRYAN CAVE LLP

By: /s/ Stacey Herter Stacey L. Herter Attorneys for Defendant COUNTRYWIDE HOME LOANS, INC., individually and dba AMERICA'S WHOLESALE LENDER; and RECONTRUST COMPANY

2
EX PARTE APPLICATION FOR EXTENSION TO RESPOND TO COMPLAINT

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1 2 I. 3

MEMORANDUM OF POINTS AND AUTHORITIES PROCEDURAL HISTORY Plaintiffs filed their original complaint (Case no. 08-CV-1167 JM (NLS)) on

4 July 1, 2008 (Docket No. 1); the Court dismissed the action on July 2, 2008 for lack 5 of subject matter jurisdiction (Docket No. 2). 6

On July 10, 2008, Plaintiffs re-filed their complaint (Case no. 08-CV-01233

7 H (AJB)) (Docket No. 1). On July 14, 2008, the court issued its "report of clerk and 8 order of transfer pursuant to low-number rule," transferring the matter back to Judge 9 Jeffrey T. Miller (Docket No. 6). Plaintiffs filed their Summons/Return of Service 10 filed on July 11, 2008, noting purported service on Defendants on July 10, 2008 11 (Docket No. 5). Defendants only recently retained counsel on July 28, 2008 and
Bryan Cave LLP 1900 Main Street, Suite 700 Irvine, California 92614-7328

12 Defendants' responsive pleadings are currently due to be filed on July 30, 2008. 13 (Declaration of Stacey L. Herter ["Herter Decl., ¶¶ 3 & 7.) 14

Pursuant to Federal Rule of Civil Procedure 81(c)(2), Defendants must file a

15 response to the Complaint on or by July 30, 2008, the longest of "20 days after the 16 receipt through service or otherwise of a copy of the initial pleading...or within 20 17 days after the service of summons upon such initial pleading..." 18 II. 19 20

DEFENDANTS REQUESTED ADDITIONAL TIME TO RESPOND; PLAINTIFFS IGNORED DEFENDANTS' REQUEST Stacey L. Herter, counsel for Defendants, contacted Plaintiffs on July 28,

21 2008 at two different telephone numbers listed on the pleadings to request an 22 extension of time for all Defendants to file and serve a response to the Complaint. 23 (Herter Decl., ¶ 4.) The individual who answered the first telephone number ((619) 24 581-7844) responded that counsel had the wrong number and that neither Rosario 25 nor Jesus Tina resided at that number; the second telephone number called ((619) 26 813-7844) went directly to voicemail. Defendants' counsel left a voicemail 27 requesting an extension to respond to Plaintiffs' complaint. (Herter Decl., ¶ 5.) To 28 date, Plaintiffs have not returned Defendants' counsel's telephone call. (Herter
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EX PARTE APPLICATION FOR EXTENSION TO RESPOND TO COMPLAINT

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1 Decl., ¶ 6.) 2

Two days is inadequate to enable Defendants' lawyers to investigate, research

3 and prepare a response to the Complaint in this action. 4

In particular, on July 11, 2008, Judge Marilyn L. Huff's clerk contacted

5 Defendants approximately 30 minutes after Defendants had foreclosed on Plaintiffs' 6 property with a request that Defendants participate in an afternoon telephone 7 conference with Judge Huff. At that time, Judge Huff ordered that Defendants may 8 file an opposition to Plaintiffs' ex parte application for injunction by noon on July 9 15, 2008. (See Docket No. 4) Defendants filed their opposition on July 15, 2008. 10 (See Docket Nos. 7 & 8.) 11
Bryan Cave LLP 1900 Main Street, Suite 700 Irvine, California 92614-7328

Defendants apply ex parte to the Court for an Order for an extension of thirty

12 (30) additional days to file their responsive pleadings, from July 30, 2008 to and 13 including August 29, 2008. 14 III. 15 16 17

FOR GOOD CAUSE SHOWN, AND IN THE INTEREST OF FAIRNESS, DEFENDANTS' DEADLINE TO RESPOND TO THE COMPLAINT SHOULD BE EXTENDED. Under Federal Rule of Civil Procedure 6(b), when an "act is required . . . the

18 court for cause shown may at any time in its discretion (1) with or without motion or 19 notice order the period enlarged if the request thereof is made before the expiration 20 of the period originally prescribed..." Fed. R. Civ. P. 6(b); see Jenkins v. 21 Commonwealth Land Title Ins. Co., 95 F.3d 791, 795 (9th Cir. 1996). 22

The extension of time sought is being sought prior to the expiration of the

23 time for Defendants to file their response. Defendants are not required to file their 24 response until July 30, 2008. 25

Good cause exists for the requested extension because Defendants only

26 recently obtained counsel and counsel for Defendants require additional time to 27 review the complaint, review the case file, conduct applicable research, and prepare 28 a responsive pleading, all of which will require more than two days due to the nature
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EX PARTE APPLICATION FOR EXTENSION TO RESPOND TO COMPLAINT

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1 of this dispute. 2

A court order granting the requested extension of time will prevent unfair

3 prejudice to Defendants, while imposing no undue burden or prejudice on Plaintiffs. 4 Therefore, pursuant to Federal Rule 6(b), the Court should enter the proposed order 5 lodged with this application, which provides that the period in which Defendants 6 may file their response to the Complaint shall be extended to and including August 7 29, 2008. 8 IV. 9

CONCLUSION For all of the foregoing reasons, Defendants respectfully request that this

10 Court grant Defendants an extension of the date to respond to the Complaint, up to 11 and including August 29, 2008.
Bryan Cave LLP 1900 Main Street, Suite 700 Irvine, California 92614-7328

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Dated: July 29, 2008

ROBERT E. BOONE III, ESQ. STACEY L. HERTER BRYAN CAVE LLP

By: /s/ Stacey Herter Stacey L. Herter Attorneys for Defendant COUNTRYWIDE HOME LOANS, INC., individually and dba AMERICA'S WHOLESALE LENDER; and RECONTRUST COMPANY

3
EX PARTE APPLICATION FOR EXTENSION TO RESPOND TO COMPLAINT

Case 3:08-cv-01233-JM-NLS

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Filed 07/29/2008

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1 ROBERT E. BOONE III (California Bar No. 132780) 2 120 Broadway, Suite 300 3 Telephone: (310) 576-2100

BRYAN CAVE LLP

Santa Monica, CA 90401-2386 Facsimile: (310) 576-2200

4 Email: [email protected] 5

STACEY L. HERTER (California Bar No. 185366) 6 BRYAN CAVE LLP 1900 Main Street, Suite 700 7 Irvine, California 92614-7328 Telephone: (949) 223-7000 8 Facsimile: (949) 223-7100 Email: [email protected]
9 10 COUNTRYWIDE HOME LOANS, INC., individually 11 and dba AMERICA'S WHOLESALE LENDER; and

Attorneys for Defendant

RECONTRUST COMPANY

Bryan Cave LLP 1900 Main Street, Suite 700 Irvine, California 92614-7328

12 13 14 15 16 ROSARIO TINA, and JESUS G. TINA, 17 18

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Case No. 08 CV 1233 H AJB DECLARATION OF STACEY L. HERTER IN SUPPORT OF EX PARTE APPLICATION OF DEFENDANTS FOR AN EXTENSION OF TIME TO RESPOND TO COMPLAINT [Filed concurrently with Memorandum of Points and Authorities and [Proposed] Order]

Plaintiffs, vs. INC.; AMERICA'S WHOLESALE Defendants.

19 COUNTRYWIDE HOME LOANS, 20 LENDER; RECONTRUST COMPANY, 21 22 23 24 25 26 27 28
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DECLARATION IN SUPPORT OF EX PARTE APPLICATION FOR EXTENSION TO RESPOND TO COMPLAINT

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1 2 3

DECLARATION OF STACEY L. HERTER I, Stacey L. Herter, hereby declare as follows: 1. I am an attorney duly licensed to practice law in all courts of the State

4 of California. I am counsel with the law firm of Bryan Cave LLP, attorneys of 5 record for COUNTRYWIDE HOME LOANS, INC., individually and dba 6 AMERICA'S WHOLESALE LENDER and RECONTRUST COMPANY 7 (collectively "Defendants") in the action herein. I have personal knowledge of the 8 matters set forth in this declaration. If called as a witness, I could and would testify 9 competently to such matters. 10

2.

Defendants' ex parte application for an extension to respond to the

11 Complaint is necessary to allow Defendants sufficient time to investigate the claims
Bryan Cave LLP 1900 Main Street, Suite 700 Irvine, California 92614-7328

12 asserted and to prepare appropriate responsive pleadings. 13

3.

Defendants retained my services in connection with this matter on July

14 28, 2008. 15

4.

On July 28, 2008, I telephoned the two numbers listed on the pleadings

16 to request an extension of time for all Defendants to file and serve a response to the 17 Complaint. 18

5.

The individual who answered the first telephone number ((619) 581-

19 7844) responded that I had the wrong number and that neither Rosario nor Jesus 20 Tina resided at that number; the second telephone number I called ((619) 813-7844) 21 went directly to voicemail. I left a voicemail requesting an extension to respond to 22 Plaintiffs' complaint. 23

6.

To date, Plaintiffs have not returned my telephone call or responded to

24 my request for an extension of time to respond to the complaint. 25

7.

Defendants' responsive pleadings are currently due to be filed on July

26 30, 2008. 27 28

8.
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Accordingly, on July 29, 2008, I sent correspondence to Plaintiffs via 1
DECLARATION IN SUPPORT OF EX PARTE APPLICATION FOR EXTENSION TO RESPOND TO COMPLAINT

Case 3:08-cv-01233-JM-NLS

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1 Federal Express (insofar as Plaintiffs do not list an email address for service and 2 because the telephone numbers provided for Plaintiffs may not be correct) advising 3 them of this ex parte application and the bases of the application. I enclosed a copy 4 of the ex parte application with this correspondence. (Attached hereto as Exhibit 5 "A" is a true and correct copy of said correspondence.) 6

I declare under penalty of perjury under the laws of the State of California

7 and the United States of America that the foregoing is true and correct. 8 9 10 11
Bryan Cave LLP 1900 Main Street, Suite 700 Irvine, California 92614-7328

Executed this 29th day of July, 2008, at Irvine, California. /s/ Stacey Herter Stacey L. Herter

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DECLARATION IN SUPPORT OF EX PARTE APPLICATION FOR EXTENSION TO RESPOND TO COMPLAINT

Case 3:08-cv-01233-JM-NLS

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Case 3:08-cv-01233-JM-NLS

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1 ROBERT E. BOONE III (California Bar No. 132780) 2 120 Broadway, Suite 300 3 Telephone: (310) 576-2100

BRYAN CAVE LLP

Santa Monica, CA 90401-2386 Facsimile: (310) 576-2200

4 Email: [email protected] 5

STACEY L. HERTER (California Bar No. 185366) 6 BRYAN CAVE LLP 1900 Main Street, Suite 700 7 Irvine, California 92614-7328 Telephone: (949) 223-7000 8 Facsimile: (949) 223-7100 Email: [email protected]
9 10 COUNTRYWIDE HOME LOANS, INC., individually 11 and dba AMERICA'S WHOLESALE LENDER; and

Attorneys for Defendant

RECONTRUST COMPANY

Bryan Cave LLP 1900 Main Street, Suite 700 Irvine, California 92614-7328

12 13 14 15 16 ROSARIO TINA, and JESUS G. TINA, 17 18

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Case No. 08 CV 1233 H AJB

Plaintiffs, vs. INC.; AMERICA'S WHOLESALE Defendants. CERTIFICATE OF SERVICE

19 COUNTRYWIDE HOME LOANS, 20 LENDER; RECONTRUST COMPANY, 21 22 23 24 25 26 27 28
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CERTIFICATE OF SERVICE

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1 2

I, Stacey Herter, declare: I am employed in the County of Orange, State of California. I am over the

3 age of 18 and not a party to the within action. My business address is: 1900 Main 4 Street, Suite 700, Irvine, California 92614-7328, and my email address is: 5 [email protected]. 6

On July 29, 2008, I caused to be served on the interested parties in said action

7 the within: EX PARTE APPLICATION OF DEFENDANTS FOR AN 8 EXTENSION OF TIME TO RESPOND TO COMPLAINT; SUPPORTING 9 MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION 10 OF STACEY L. HERTER; DECLARATION OF STACEY L. HERTER IN 11 SUPPORT OF EX PARTE PARTE APPLICATION OF DEFENDANTS FOR
Bryan Cave LLP 1900 Main Street, Suite 700 Irvine, California 92614-7328

12 AN EXTENSION OF TIME TO RESPOND TO COMPLAINT; AND 13 [PROPOSED] ORDER GRANTING EX PARTE APPLICATION OF 14 DEFENDANTS FOR AN EXTENSION OF TIME TO RESPOND TO 15 COMPLAINT by placing a true copy thereof in sealed envelope(s) addresse as 16 stated below and causing such envelope(s) to be deposited in the U.S. Mail at Irvine, 17 California. 18 19

See Attached Service List for Service Details [X] BY OVERNIGHT DELIVERY - Depositing the above document(s) in a

20 box or other facility regularly maintained by FedEx in an envelope or package 21 designated by FedEx with delivery fees paid or provided for. 22 23 24 25 26 27 28
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I declare that I am a member of the bar of this Court. Executed on July 29, 2008, at Irvine, California.

Stacey Herter (Type or print name)

/s/ Stacey Herter (Signature)

1
CERTIFICATE OF SERVICE

Case 3:08-cv-01233-JM-NLS

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Bryan Cave LLP 1900 Main Street, Suite 700 Irvine, California 92614-7328

Service List Rosario Tina and Jesus G. Tina v. Countrywide Home Loans, Inc., et al. USDC Case No.: 08 CV 1233 H AJB Mr. and Mrs. Jesus and Rosario Tina 1220 Manchester Street National City, CA 91950 Mr. and Mrs. Jesus and Rosario Tina 863 Glencoe Drive San Diego, CA 92114 In Pro Per

In Pro Per

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CERTIFICATE OF SERVICE